97 Pa. 222 | Pa. | 1881
delivered the opinion of the court, February 28th 1881.
The sale of the land in controversy, under the mortgage of Rosa Anna Coyne to Edward White, discharged the lien of the legacy charged upon it by the will of Isaac White. Of this Strauss’s Appeal, 13 Wright 353, is conclusive. The auditor, who was appointed to distribute the money made by the sale of the same property under the judgment of Shallcross against Edward White, came to a different conclusion. He seemed to think that the sale by the devisee .on his own mortgage was a fraud per se upon the legatee, and as a consequence did not discharge the lien of his legacy. But this is a conclusion that cannot be sustained. It is true that Edward White was the executor of his father’s will, and as such required to act in good faith towards his father’s creditors arid legatees, but he was also devisee, and since, as such, he had the undoubted right to sell the land devised to him, so he had the right to secure himself, as to the purchase-money, by judgment or mortgage.
It then follows necessarily that he could compel the payment of such security by execution and sale of the land. All this having been done in good faith, as in the absence of evidence to the con
Prima facie then, the mortgage in suit was the first lien upon the premises and was not discharged by the sale on the Shallcross judgment. But it is urged that the submission of this mortgage, to the consideration of the auditor, gave that officer jurisdiction over it, and that by reason thereof his decision was final and conclusive.
This question was raised in the court below by the defendant’s plea of puis darrein continuance — a plea which is always pleaded by way of substitution, no proceedings being afterwards had on the previous pleadings. It may be either in bar or abatement, and, like other pleas, is followed by replication, &c., until an issue is regularly formed: Steph. Plead. (Tyler’s ed.) 98; 2 Chit. Plead. 453. In the case in hand, the issue was formed under the replication of nul tiel record. What wc have to do, therefore, is to examine the auditor’s report, in the case of Shallcross v. White, for the purpose of ascertaining whether or not the question now presented was settled in that proceeding.
Whether this was so determined must, we think, depend upon the fact of the voluntary submission of the mortgage now in controversy to the judgment of the auditor, for we cannot for a moment entertain the idea that the lien of a first mortgage could bo discharged by the unauthorized act of an auditor. Prima facie the auditor had nothing to do with it. He was making distribution of moneys raised under a subsequent judgment, and as to this fund tho Woods mortgage had no standing and ought not to have been considered. It may bo, indeed, if it were presented by the mortgagee as a lien on the fund, and was passed upon by the auditor, and by him postponed to what he considered a prior lien, his judgment unappealed from would be conclusive. It is indeed a fact that he did. so pass upon this mortgage, and that, in his judgment, its lien was preceded by the Powell legacy, and was therefore divested by the sheriff’s sale. Under these circumstances, it becomes important to know by what authority the auditor acted, whether or not the mortgagee submitted her mortgage for his judgment. The following is all that is exhibited by the auditor’s report on this subject.
“ Francis E. Brewster, Esq., represented Mrs. Lydia Ann Woods, who held a mortgage upon the premises in question, given by the said defendant, dated April 1st 1876, for $5000, and recorded April 6th 1876, in mortgage-book-D. II. L. No. 2, p. 542. Mr. Brewster stated that he appeared before your auditor for the purpose of calling attention to said mortgage; claiming it to be a first lien against said premises; and to proceedings pending in the Court of Common Pleas No. 1, for the county of Philadelphia, of December
This was not a submission of the question in controversy to the auditor, the very converse. The counsel for the mortgagee claimed that the mortgage was a first lien, but gave notice, that should the Court of Common Pleas decide otherwise, he would claim the fund, and asked that the auditor’s judgment be suspended until the pending suit should be determined. In short, he informed the auditor that, at that time, he had no standing before him, but might have, should the decision of the court, in the case then pending, be averse to his position, and asked ex gratia for a continuance.
It is thus obvious that nothing was submitted to the auditor which gave him jurisdiction over the subject-matter now in controversy : he was appealed to for nothing but a continuance, and that he refused to grant. It follows that upon the record exhibited there was nothing which curtailed the power of the court or altered the original status of the parties which were before it, hence it ought to have sustained the plaintiff’s replication, and ordered judgment against the defendant for the whole amount of the mortgage.
Judgment is reversed, and judgment for the plaintiff for the full amount of her mortgage with interest and costs. Judgment to be liquidated by the Prothonotary of the Court of Common Pleas.
